Full Judgment Text
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CASE NO.:
Appeal (civil) 3178 of 2008
PETITIONER:
M/s. Eastern Equipment & Sales Ltd
RESPONDENT:
ING. Yash Kumar Khanna
DATE OF JUDGMENT: 30/04/2008
BENCH:
TARUN CHATTERJEE & HARJIT SINGH BEDI
JUDGMENT:
JUDGMENT
O R D E R
Non-Reportable
CIVIL APPEAL NO.3178 OF 2008
(Arising out of SLP)No.8565 of 2007)
1. Delay condoned.
2. Leave granted.
3. Rejoinder Affidavit filed by the appellant be taken on
record.
4. This appeal is directed against an order passed by a
learned Single Judge of the High court of Delhi at New Delhi in
CM(M) No. 41 of 2007 by which an order dated 05.10.2006
passed by the Appellate Court rejecting the petition filed by the
appellant in the pending appeal for acceptance of additional
evidence under Order 41 Rule 27 of the Code of Civil
Procedure was affirmed.
5. We have heard learned counsel for the parties and after
considering the facts and circumstances of the present case,
we are of the view that in order to decide the pending appeal in
which the application under Order 41 Rule 27 of the Code of
Civil Procedure was filed ought to have been taken by the
appellate Court along with the application for acceptance of
additional evidence under Order 41 Rule 27 of the Code of Civil
Procedure. In that view of the matter and without going into the
merits as to whether the application under Order 41 Rule 27 of
the Code of Civil Procedure was rightly rejected by the
Appellate Court as well as by the High Court, we set aside the
order of the High Court as well as of the appellate Court
rejecting the application under Order 41 Rule 27 of the Code of
Civil Procedure and we direct that the appellate Court shall
decide the pending appeal along with the application under
Order 41 Rule 27 of the Code of Civil Procedure on merits
within a period of three months from the date of supply of a
copy of this order to the appellate court. The appeal is allowed
to the extent indicated above. There will be no order as to
costs.
6. The view that we have expressed can be supported by a
decision of this Court in the case of Jaipur Development
Authority vs. Kailashwati Devi 1997 (7) SCC 297.
7. We make it clear that we have not gone into the merits of
the application under Order 41 Rule 27 of the Code of Civil
Procedure which is kept open to be decided by the appellate
court while deciding the appeal.